A bench of Justices B N Agrawal, G S Singhwi and H S Bedi enhanced the compensation to Rs one crore from Rs 15 lakh which was awarded by the Andhra Pradesh High Court to Prashant S Dhanaka, the software engineer.
The victim suffered permanent disability in the form of paralysis and other complications, rendering him incapable of all normal chores after undergoing a surgery in Nizams Institute of Medical Sciences.
The Head Notes of the case are mentioned below:-Nizam Institute of Medical Sciences Appellant versus Prasanth S. Dhananka and others Respondents
Date of Decision(mm/dd/yy): 5/14/2009.
Judge(s): Hon'ble Mr. Justice B.N. Agrawal, Mr. Justice Harjit Singh Bedi and Mr. Justice G.S. Singhvi.
Subject Index: A)
Medical negligence — the complete investigations prior to the actual operation had not been carried out — whether the required consent for the excision of the tumour had been taken from the complainant or his parents. The Commission has noted that some discussion between the complainant, his parents and Dr. Satyanarayana had taken place in the OPD and the possibility of deferring the operation had been mooted but notwithstanding this discussion, the complainant had been admitted to hospital on the 19th October, 1990 and operated upon on 23rd October 1990. The Commission has observed that as blood had been donated by the relatives of the complainant, it was likely that they had the information that a surgery was planned, as they were educated and enlightened persons. The Commission has, accordingly, held on the basis of the evidence of Dr. Satyanarayana "that once the consent for excision biopsy through thoractomy was given, the consent for a moment (sic) (removal?) of the mass was implied" — in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence — the attending doctors were seriously remiss in the conduct of the operation and it was on account of this negligence that the Paraplegia had set in — the complainant had to undergo great agony and inconvenience for lack of proper post operative medical care. B) Quantum of compensation — keeping in view the need for continuous medical aid which would involve expensive medicines and other material, and the loss towards future earnings etc., this Court directs a lump sum payment of Rs.25/-lakhs under each of these two heads making a total of Rs.50 lakhs — a payment of Rs.10 lakh towards the pain and suffering that the appellant has undergone. The total amount thus computed would work out to Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is rounded off to Rs. One Crore plus interest at 6% from Ist March, 1999 to the date of payment, giving due credit for any compensation which might have already been paid.
The Brief of the case are:-Prasant S. Dhananka ( hereinafter called the "complainant"), then 20 years of age and a student of Engineering, complaining of recurring fever was examined in the hospital run by the Bharat Heavy Electricals Limited as his father was employed with that Organisation. As the cause of the fever could not be identified, he visited the appellant -Nizam Institute of Medical Sciences (NIMS) on 9th September, 1990 in the evening OPD. He was examined by one Dr. Ashish Boghani, a Chest and Tuberculosis Specialist and was advised to undergo on ultrasound guided biopsy for Neurofibroma, an innocent tumour, after an X-ray revealed a mass in the left hemithorax with posterior mediastinal erosion of the left 2nd, 3rd and 4th ribs. As several attempts at Fine Needle Aspiration Cytology (FNAC) under ultra sound guidance did not give any conclusive evidence as to the nature of the mass detected in the X-ray examination, the complainant wasreferred (on 5th October, 1990) for further examination to Dr.U.N. Das, who suggested another attempt at the same procedure but under C.T. guidance. This test too did not show any lesion on which Dr. U.N. Das suggested that he undergo an excision biopsy and referred him to Dr. P.V. Satyanarayana, a Cardio Thoracic Surgeon, who further advised him to report at the hospital on 16th October, 1990 for allotment of a room. The complainant was admitted to the hospital on 19th October, 1990 and the operation wasperformed on 23rd October, 1990 and the tumour was excised. It appears that immediately after the surgery, the complainant developed acute paraplegia with a complete loss of control over the lower limbs, and some other related complications, which led to prolonged hospitalization and he was ultimately discharged from the hospital on 19th May, 1991 completely paralyzed with no change in his sensory deficit. The discharge record also shows that the patient required continuousphysiotherapy and nursing care on account of infection of the urinary tract and the development of bed-sores etc. It is the case of the complainant that after his discharge from NIMS, he visited several other hospitals seeking relief, but to no avail. On 11th May, 1991 the complainant's father requested NIMS for a detailed report so that his son's case could be discussed with experts from other developed countries` so as to improve his quality of life. No reply was, however, forthcoming despite a reminder. Another letter dated 12th November 1991 also drew no response. Completely frustrated, the complainant filed a complaint before the National Consumer RedressalCommission (hereinafter referred to as the "Commission") on 5th April, 1993 alleging utter and complete negligence on the part of Dr. P.V. Satyanarayana and the other attending doctors and also making NIMS vicariously liable and the State of Andhra Pradesh statutorily liable for the negligence of the doctors concerned. Allegations was primarily levelled against Dr. P.V. Satyanarayana for negligence before, during and after the operation. It was alleged that the medical record did notindicate any immediate danger to the complainant's life and health and that his father had pleaded with the doctors that the operation be postponed till such time he could complete his engineering degree course. It was further alleged that the doctors had not carried out the required pre-operative tests which were available in NIMS itself and that the complications which could possibly flow as the result of an excision biopsy had not been spelt out to the complainant prior to the procedure. It was also submitted that operating on a neurofibroma or a schwannoma which had neurological implications as well, warranted the involvement of a Neuro surgeon but no such opinion was sought before the surgery. It was also pleaded that the consent that had been taken wasonly for the purpose of an excision biopsy which was an exploratory procedure, but Dr.Satyanarayana had carried out a complete excision removing the tumour mass and the fourthrib thereby destroying the inter-costal blood vessels leading to paraplegia and had a Neuro-surgeon been associated with the operation, this problem could well have been avoided. The complainant also alleged that negligence in post-operative treatment and care had led to bedsores, severe pain, and high temperature and frequent and unnecessary exposure to X-rays which could be a potential hazard later in life. He accordingly claimed compensation as follows:
A) SPECIAL DAMAGES (PECUNIARY)
1. Loss of future earnings Rs.89,17,200
(Annexure XI)
2. Present burden of expenses Rs. 3,38,604**
[Annexures IV(a) to(d) ]
3. Damages on account of the Rs. 30,34,930
complainant by father, mother,
younger brother & maternal Uncle
[Annexures VII, VIII, IX & X]
4. Prospective burden of expenses Rs. 3,00,00,000
(Annexure-XII)
B) GENERAL DAMAGES (NON PECUNIARY)
Pain and suffering, loss of amenities & Rs.38,30,000 Enjoyment of life & shortening of life
Expectancy. (Annexures XIII, XIV, XV) - Rs.4,61,20,734
** (Later in his affidavit dated 5.2.94, this has
been shown as Rs.3,49,022 and the total claim
as 4,61,31,152: the present burden of
expenses includes an amount of Rs.1,27,644/-
paid to OPI and Rs.91,002/- to other
hospitals).
Opinion:-The complainant, who has argued his own case, has submitted written submissions now claiming about 7.50 Crores as compensation under various heads. He has, in addition sought a direction that a further sum of Rs. 2 crores be set aside to be used by him should some developments beneficial tohim in the medical field take place. Some of the claims are untenable and we have no hesitation in rejecting them. We, however, find that the claim with respect to some of the other items need to be allowed or enhanced in view of the peculiar facts of the case. Concededly, the complainant is a highly qualified individual and is gainfully employed as an IT Engineer and as per his statement earning a sum of Rs.28 Lakh per annum though he is, as of today, about 40 years of age. Thevery nature of his work requires him to travel to different locations but as he is confined to a wheel chair he is unable to do so on his own. His need for a driver cum attendant is, therefore, made out. The complainant has worked out the compensation under this head presuming his working life to be upto the age of 65 years. We feel that a period of 30 years from the date of the Award of the Commission i.e. 16 th February, 1999, rounded off to Ist March, 1999, would be a reasonablelength of time. A sum of Rs.2,000/- per month for a period of 30 years (rounded off from 1st of March 1999) needs to be capitalized. We, accordingly, award a sum of Rs.7.2 Lakh under this head. The complainant has also sought a sum of Rs.49,05,800/- towards nursing care etc. as he is unable to perform even his daily ablutions without assistance. He has computed this figure on the basis of the salary of a Nurse at Rs. 4375/-per month for 600 months. We are of the opinion that the amount as claimed is excessive. We, thus grant Rs.4,000/- per month to the appellant for a period of 30 years making a total sum of Rs.14,40,000/-. The complainant has further sought a sum of Rs.46 Lakhs towards physiotherapy etc. at the rate of Rs.4,000/- per month. We reduce the claim from Rs.4,000/- to Rs.3,000/- per month and award this amount for a period of 30 years making a total sum of Rs.10,80,000/- At this stage, it may be pointed out that some of the medical expenses that had been incurred by the complainant have already been defrayed by the employer of the complainant's father and we are, therefore, disinclined to grant any compensation for the medical expenses already incurred. However, keeping in view the need for continuous medical aid which would involve expensive medicines and other material, and the loss towards future earnings etc., we direct a lump sum payment of Rs.25/-lakhs under each of these two heads making a total of Rs.50 lakhs. In addition, we direct a payment of Rs.10 lakh towards the pain and suffering that the appellant has undergone. The total amount thus computed would work out to Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is rounded off to Rs. One Crore plus interest at 6% from Ist March, 1999 to the date of payment, giving due credit for any compensation which might have already been paid.
The complainant has also claimed a sum of Rs.2 crore to be put in deposit to be utilized by him in case some developments in the medical field make it possible for him to undergo further treatment so as to improve his quality of life.This claim is unjustified and hypothetical and is declined.We must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized.
Life it is said is akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-a-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped
person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.Mr. Tandale, the learned counsel for the respondent has, further, submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.Civil appeal No.3126 of 2000 is allowed in the above term with costs of Rs.50,000/-. It is also clarified that the complainant parents would be entitled to the sum awarded to them by the Commission. CA No.4119 of 1999 is dismissed.Before we end, a word of appreciation for the complainant who, assisted by his father, had argued his matter. We must record that though a sense of deep injury was discernible throughout his protracted submissions made while confined to a wheel-chair, he remained unruffled and with behaved quiet dignity, pleaded his case bereft of any rancour or invective for those who, in his perception, had harmed him.
As the complainant is severely handicapped and has appeared in person, we direct that a copy of this judgment be sent to his address, free of cost, under registered cover.
